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TMI Blog2011 (7) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... les, channels, sheets etc. used for repair and replacement of damaged parts of cement plant and machinery - clin, pre-heater, cement mill, raw mill, coal mill etc. are eligible for Cenvat credit either as capital goods or as inputs; (ii) whether iron and steel structures and tower material falling under Chapter Heading 73.08 are eligible for Cenvat credit; (iii) whether unmachined steel castings and rough HRCS castings used for replacement of damaged parts of the cement plant and machinery are eligible for Cenvat credit; (iv) whether rope asbestos/sheet steam jointing and similar items used for plugging the leakages are eligible for Cenvat credit; (v) whether nitrogen gas falling under Chapter 28 and PVC sheets plastic sheets of Chapter 39 are eligible for Cenvat credit; (vi) whether aluminium conductors falling under sub-heading 7614.10 are eligible for Cenvat credit. The original Adjudicating Authority had disallowed the Cenvat credit in respect of the above items and on appeals being filed against those orders, the Commissioner (Appeals) vide impugned order-in-appeal dated 9-11-2005 upheld the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conductors are used for power supply and hence have to be treated as part of the cement plant machinery and the same would be eligible for Cenvat credit and in this regard they rely upon the judgment of the Hon'ble Himachal Pradesh High Court in the case of C.C.E. v. A.C.C. Ltd. reported in 2009 (236) E.L.T. 38 (H.P.), that nitrogen gas is used in connection with repair and maintenance and, hence, the same would also be eligible for Cenvat credit, and that in view of the above submissions, the impugned order is not correct. 2.2 Shri V. Choudhary, the learned Departmental Representative, defending the impugned order, pleaded that in all these cases the appellant have made only a general claim regarding use of the M.S. Angles, Channels, Beams etc. for repair and maintenance without specifying as to which item is used for repair and maintenance of which machine, that in any case, M.S. Angles, Channels, Beams, Joists etc. are neither covered by the definition of capital goods nor the same are covered by the definition of input, that the M.S. Angles, Channels, Beams etc. and other structures falling under Heading 73.08 are not eligible for Cenvat credit and in this regard he reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A115 (S.C.). Besides this, we find that Hon'ble Chhattisgarh High Court in the case of Ambuja Cements Eastern Ltd. v. C.C.E., Raipur (supra) has held that welding electrodes used for repair and maintenance of the plant and machinery are entitled for Cenvat credit. In this judgment, Hon'ble High Court relied upon the judgment of Hon'ble Rajasthan High Court in the case of Union of India v. Hindustan Zinc Ltd. (supra) and in paras 21 and 22 of the judgment, Hon'ble High Court with regard to the Revenue's plea that the Tribunal in the case of Steel Authority of India Ltd. v. C.C.E. reported in 2008 (222) E.L.T. 233 (Tri.) had held that welding electrodes used for repair and maintenance of plant and machinery are not eligible for Cenvat credit and the SLP filed by M/s. SAIL against the Tribunal's order has been dismissed by Hon'ble Supreme Court in view of the facts of this case vide judgment reported in 2008 (229) E.L.T. A127 (S.C.), Hon'ble High Court observed that refusal of special leave to file appeal by a non-speaking or speaking order does not attract the doctrine of merger, whereas where an award, appeal or revision is provided against the order passed by the Court, Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Vandana Global Ltd. v. C.C.E., Raipur (supra), wherein this Tribunal held that foundation and supporting structures embedded to earth are capital assets and the same do not qualify as capital goods as defined in Rule 2(a) of Cenvat Credit Rules and hence the steel items used for erection of the supporting structures are not eligible for Cenvat credit. In view of this, the impugned order denying Cenvat credit in respect of these items is upheld. 3.5 As regards aluminium conductors, the same are classifiable under sub-heading 7614.90 of the Tariff which is not the heading specified in the definition of capital goods. It is also not the case of the appellant that the aluminium conductors are components or accessories of any item of capital goods. We also find that the Tribunal in the case of Sarita Steel & Industries Limited v. C.C.E., Visakhapatnam-I (supra) has held that the aluminium conductors falling under sub-heading 7614.90 of the Tariff are not covered by the definition of capital goods. In view of this, the Cenvat credit has been rightly denied in respect of this item. 3.6 As regards nitrogen gas used in connection with repair and maintenance jobs, the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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